People v. Brownridge

Smolensk!, J.

(concurring in part and dissenting in part). I concur in part and dissent in part. I would affirm defendant’s convictions and sentence.

i

Except as otherwise stated in this opinion, I concur in the majority’s statement of the facts.

n

I conclude that the trial court’s rulings with respect to the admission of evidence concerning Earl Stark’s credibility either did not constitute an abuse of discretion or, if error, did not constitute error requiring reversal. I would not reverse defendant’s convictions on this ground.

I address defendant’s arguments in turn. Defendant argues that the trial court erred under MRE 608(b) in refusing to allow defense counsel to examine both Stark and Michael Costello concerning a specific instance of Stark’s conduct, i.e., Stark’s alleged submission of a false affidavit in another case. I disagree. MRE 608(b) provides:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or *310untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. [Emphasis supplied.]

In this case, the separate record of Stark’s and Costello’s testimony indicates that the other case concerned a rape that was alleged to have occurred at defendant’s house before it burned. In support of an arrest warrant for the suspected rapist, Stark swore in an affidavit that a tracking dog had followed the tracks of the suspect in the direction of the suspect’s residence, which was located in the neighborhood of defendant’s house, but that before reaching the suspect’s residence the dog lost the track and was unable to pick up the track again. During the separate record of Costello’s testimony, Costello testified that these statements by Stark were false because the dog did not go anywhere near the suspect’s residence. However, during the prosecution’s cross-examination of Costello, Costello conceded that the affidavit did not state that the dog had lost the track upon reaching the suspect’s house, but, rather, that the dog lost the track before it reached the suspect’s address. Costello also acknowledged that, consistent with the affidavit, the dog had actually traveled in the direction of the suspect’s residence for a short distance before losing the track.

Where Costello’s proposed testimony acknowledged that Stark’s affidavit was essentially consistent with the dog’s actions, I fail to understand how this specific instance of conduct is particularly probative of Stark’s untruthfulness. Accordingly, I find no abuse *311of discretion in the trial court’s refusal to permit defense counsel to cross-examine Stark concerning this specific instance of conduct. I further find no abuse of discretion in the trial court’s refusal to admit Costello’s testimony concerning this incident, first, because, as indicated above, the incident was not particularly probative of untruthfulness, and, second, because Costello was not being cross-examined by defense counsel as required by MRE 608(b).

Next, defendant argues that the trial court erred under MRE 608(a) in refusing to allow Costello to give opinion testimony concerning Stark’s character for untruthfulness. MRE 608(a) was amended in 1991 to permit attacks on a witness’ credibility through the use of opinion testimony. See MRE 608(a), note regarding 1991 amendment; People v George, 213 Mich App 632, 634; 540 NW2d 487 (1995). In this case, the trial court relied on cases decided before the amendment to categorically rule that opinion testimony concerning Stark’s character for untruthfulness was not admissible. This was clearly error. However, I would hold that Costello’s opinion testimony could nevertheless properly have been precluded on another ground.

Stark provided virtually no direct evidence in this case. Rather, the prosecution’s case was proved through the trial exhibits and the trial testimony of Deanna Turner and Scott Turner. I agree that Stark was instrumental in gathering evidence and interviewing witnesses and that his method of gathering evidence was made a significant issue at trial. Nevertheless, the record reveals that defense counsel was able to extensively explore both Stark’s methods of gathering evidence as well as the credibility of Deanna’s and Scott’s trial testimony.

*312In particular, I note that neither a pretrial confession by Scott nor a pretrial statement by Deanna was admitted into evidence. Rather, a record of Stark’s pretrial discussions with Scott and Deanna was contained in Stark’s police reports and notes, and on tape. These items were not admitted into evidence. However, defense counsel extensively used discrepancies contained in Stark’s police reports and notes, as well as other aspects of Stark’s investigative methods, for the purpose of undermining and casting doubt on the trial testimony of Deanna and Scott, as well as Stark himself. In an effort to make sense of some of these discrepancies, Stark admitted on redirect examination that, with respect to his police report concerning Deanna, he had improperly waited a week before typing his report concerning his interview with Deanna and that he must have “co-mingled” information given him by Deanna along with other information he had obtained in the case. Defense counsel, of course, seized upon this testimony.

Thus, the record indicates that defendant had plentiful opportunities to explore the credibility of Deanna, Scott, and Stark. Further, defense counsel sought at every opportunity to shift the jury’s focus and put Stark and his investigative methods on trial. The trial court’s comments during trial reflect its constant concern with balancing defendant’s right to a fair trial with issues of jury confusion. I would conclude that Costello’s proffered opinion testimony could have been properly excluded under MRE 403 because, in light of the extensive attacks actually permitted on Stark, any probative value of the excluded opinion evidence was substantially outweighed by the danger of confusion of the issues or considerations of *313needless presentation of cumulative evidence. Alternatively, I would use the same reasoning to conclude that the preclusion of Costello’s proffered opinion testimony had a negligible effect on the jury’s verdict and was, therefore, harmless. People v Mateo, 453 Mich 203, 221; 551 NW2d 891 (1996).

Next, defendant argues that the trial court erred under MRE 608(a) in refusing to allow Costello to testify regarding Stark’s reputation for untrathfulness. I disagree.

MRE 608(a) provides that the credibility of a witness may be attacked by evidence of the witness’ reputation for untruthfulness. In order for reputation evidence to be admissible, the character witness’ testimony cannot be based on his own. personal experience and observation, but, rather, must be based upon what he has heard other people in the subject’s residential or business community say about the subject’s reputation. People v Bieri, 153 Mich App 696, 712; 396 NW2d 506 (1986); People v Walker, 150 Mich App 597, 602; 389 NW2d 704 (1985). One’s community can be either where one lives or works, and a reputation may be established wherever one interacts with others over a period. Bieri, supra at 713.

In this case, defense counsel sought to lay a foundation for the admission of Costello’s reputation testimony by offering evidence of Costello’s personal experiences with Stark, in particular the specific incident of Stark’s alleged false affidavit. The trial court ruled that an inadequate foundation for Costello’s reputation testimony had been laid where Costello’s proposed testimony was devoid of any indication that it was based on what Costello had heard other persons say about Stark’s reputation. In a last-ditch effort to *314save Costello’s proposed reputation testimony, defense counsel finally elicited Costello’s testimony that several other fellow officers had communicated to him that Stark had a reputation for being untruthful. However, the trial court remained with its original ruling in light of Costello’s concession on cross-examination that none of these officers, albeit out of fear, would come into court and testify that Stark was untruthful. In light of the paucity and contrived nature of the foundation laid for Costello’s proposed reputation testimony, I conclude that the trial court’s ruling with respect to this issue did not constitute an abuse of discretion.

Moreover, following trial, defendant moved for a new trial on this ground. The trial court denied defendant’s motion. The trial court reasoned that to have permitted Costello to testify regarding Stark’s reputation based on the statements of other police officers would have placed before the jury a lawsuit brought by Costello against several members of the police department. The trial court believed that Costello’s reputation testimony, “instead of being enlightening for the jury, . . . would have confounded and confused them [sic] to get involved in Mr. Costello’s argument with the city and with the police department in particular.” I find no abuse of discretion with respect to this ruling. People v Torres (On Remand), 222 Mich App 411, 415; 564 NW2d 149 (1997).

Finally, defendant argues that the trial court erred in excluding Costello’s testimony concerning the propriety of Stark’s investigative methods. However, I concur with the majority opinion that no error in this regard occurred.

*315m

Next, defendant argues that the prosecutor committed misconduct in failing to disclose that Deanna was under investigation for felony welfare fraud at the time of the trial. Defendant also raised this argument in his motion for a new trial below. After reviewing the documents submitted by defendant in support of his motion, the trial court denied the motion. The court reasoned that there was no evidence either that the prosecutor had surreptitiously held up Deanna’s prosecution for the sake of improving his position in defendant’s case or that the prosecutor had surreptitiously made a promise to Deanna and failed to disclose it on the record. I agree with the trial court. It is true, as argued by defendant, that pending charges may be admissible to establish a witness’ interest in testifying. People v Hall, 174 Mich App 686, 691; 436 NW2d 446 (1989). Plowever, my review of the documents submitted by defendant indicates that there were no charges pending against Deanna at the time of either defendant’s June 1994 trial, which ended in a mistrial, or defendant’s November 1994 trial, which resulted in defendant’s convictions. Contrary to the majority’s statement, a warrant for Deanna’s arrest was not authorized until December, 16, 1994, and a complaint was not sworn out until December 22, 1994. Moreover, the Department of Social Services was both the investigating agency and the complaining witness, as well as the arresting agency, in Deanna’s case. Defendant has cited no authority concerning the effect of a pending investigation. Accordingly, I find no abuse of discretion in the trial court’s denial of defendant’s motion for a new trial on this ground. Torres, supra.

*316IV

I conclude that defendant was not denied a fair and impartial trial by any remarks made by the prosecutor. People v Bass (On Rehearing), 223 Mich App 241; 565 NW2d 897 (1997).

v

I concur in the majority’s holding that the trial court’s decision to admit the rebuttal testimony of Deanna’s stepmother did not constitute an abuse of discretion.

VI

Assuming without deciding that Deanna’s and Scott’s hearsay testimony concerning Raymond Turner’s statements was not properly admitted under MRE 804(b)(3) (statement against interest), I would nevertheless hold that this testimony was properly admitted under MRE 803(3) (then existing mental, emotional, or physical condition).

vn

I concur in the holdings in part vn of the majority opinion.

vm

Because I would affirm defendant’s convictions, I decline to address the prosecutor’s argument that a count of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), should be added upon retrial. I likewise decline to address the prosecutor’s challenges to the scoring of the sentencing guidelines. People v Mitchell, 454 Mich 145, 172-178; 560 NW2d 600 (1997).

*317In summary, defendant received a fair trial in this case. I would affirm his convictions and sentence.